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The People v. Mark Turner

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


December 29, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARK TURNER, DEFENDANT AND APPELLANT.

(Super. Ct. No. CR084788)

P. v. Turner CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In September 2008, defendant Mark Turner was charged with burglary in the first degree (Pen. Code, § 459),*fn1 assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and misdemeanor violation of a court order with physical injury (§ 273.6, subd. (b)). It was further alleged that defendant personally inflicted great bodily injury on his assault victim in violation of section 12022.7, subdivision (a).

Defendant negotiated a plea, whereby he pled no contest to a charge of stalking a person protected by a restraining order (§ 646.9, subd. (b)) and admitted that he personally inflicted great bodily injury on his victim. In exchange for his plea, the prosecution dismissed the remaining charges and two unrelated misdemeanors. The prosecution also agreed to a stipulated aggregate term of five years in state prison, and agreed to a recommendation from the court that defendant would benefit from treatment pursuant to section 646.9, subdivision (m).

Accordingly, the trial court sentenced defendant to five years in state prison, but recommended that defendant be given the mental health services provided in a state hospital pursuant to sections 646.9, subdivision (m) and 2684, subdivision (a). That recommendation was made on the record, and is recorded in the sentencing minutes. The recommendation is not, however, included in the abstract of judgment. This omission is the error about which defendant complains on appeal.

We agree with defendant that the court's recommendation should be included in the abstract of judgment. It was part of the court's judgment and is recorded in the reporter's transcript as well as the sentencing minutes. The abstract of judgment is thus inconsistent with the court's oral pronouncement of sentence.

The oral pronouncement of sentence controls where it is at variance with the minute order or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471 [pronouncement of judgment is a judicial function, while entry into the minutes and abstract of judgment is a clerical function; thus, any inconsistency is presumed to be clerical error]; People v. Rowland (1988) 206 Cal.App.3d 119, 123 [appellate court has authority to correct such clerical errors].) We shall direct the trial court to amend the abstract of judgment accordingly.

DISPOSITION*fn2

The trial court is hereby directed to amend the abstract of judgment to include the court's recommendation and certification pursuant to sections 646.9, subdivision (m), and 2684, subdivision (a), that defendant be given the mental health services provided in a state hospital. The trial court is further directed to deliver a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

BLEASE ,J.

We concur: RAYE , P.J. MAURO ,J.


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